The defendant challenged the standard of care expert witness testimony of anesthesiologist on numerous grounds. The court denied the motion.
Facts: This case (Sine v. Sheren – United States District Court – Northern District if West Virginia – April 24th, 2015) involves a medical malpractice lawsuit. In September 2013, Mrs. Regina Lou Sine was diagnosed with a gastro-intestinal perforation, for which surgery was required. Dr. Lorne Sheen, the defendant in this action, provided the anesthesia. After Dr. Sheen extubated Mrs. Sine in the operating room, she was transported to the ICU. While in the ICU, Mrs. Sine went into respiratory and cardiac arrest, and subsequently died.
Mr. Sine filed suit in Marion County Circuit Court in July 2014 alleging two counts of medical professional liability and wrongful death. In August 2014, the case was removed to this court based on diversity jurisdiction.
Mr Sine hired Dr. John H. Leckcy, an anesthesiology expert witness, to opine on the standard of care. Dr. Sheren filed a motion to exclude this testimony, stating that Dr. Leckcy is not competent to testify under the West Virginia Medical Professional Liability Act (MLPA) and not qualified under Daubert. In March 2015, the judge referred this motion to a magistrate judge, who held a hearing and ruled that Dr. Sheren’s motion to exclude was denied. Dr. Sheren then filed an objection.
Discussion: The court first looked at the competency of Dr. Leckey under the MPLA. Dr. Sheren argues that Dr. Lecky is not competent to address the standard of care and any deviation from that standard at the time of Mrs. Sine’s death as he has not engaged in the practice, teaching, or research in the field for 10 years. The court ruled that is up to the plaintiff to establish the competency of Dr. Lecky on both the standard of care and whether he deviated from that standard of care.
There are five requirements that Mr. Sine must show in order to prove that Dr. Lecky is competent to testify: 1) That Dr. Lecky actually holds the purported opinion; 2) that he can testify with reasonable medical probability; 3) that Dr. Lecky has the professional knowledge and expertise coupled with the knowledge of the applicable standard of care; 4) that Dr. Lecky maintains a current license to practice medicine with the appropriate licencing authority; and 5) that Dr. Lackey in engaged or qualified in a medical field in which the practitioner has experience in diagnosing and treating injuries similar to the patient. After arguments back and forth on the matter, the magistrate opined that Mr. Sine met all of the requirements under the MPLA.
Moving to the Daubert challenge, Dr. Seren argued that Dr. Lecky’s opinions are conjectural and unreliable as he has not practiced in the field of anesthesiology in over 7 years. He argued that this lack of recent clinical practice would not be reliable or assist the jury in any way. The court disagreed. The magistrate that based on reasons discussed related to the MPLA part of the opinion, Dr. Lecky is qualified as an expert for this case. The magistrate also opined that the testimony of Dr. Lecky will assist the trier of fact in this case.
Held: The report and recommendation of the magistrate judge is adopted. The testimony of Dr. Lecky is allowed.